Calendar Date: March 30, 2017
& Associates, PC, New York City (Benjamin B. Xue of
counsel), for appellant.
T. Schneiderman, Attorney General, New York City (Marjorie S.
Leff of counsel), for Workers' Compensation Board,
Before: Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
October 6, 2015, which, among other things, denied the
employer's request to reopen claimant's workers'
a bus driver, was involved in a 2007 bus accident in
Pennsylvania. He successfully applied for workers'
compensation benefits and asserted that "Five Stars
Travel Bus Inc." was his employer. Five Star Travel of
NY Inc. (hereinafter Five Star) was served at, among other
places, the address on file with the Secretary of State for
service of process, but the notices contained in the record
were returned as undeliverable. Five Star did not appear and,
in 2008, a Workers' Compensation Law Judge (hereinafter
WCLJ) found Five Star to be claimant's employer. The
WCLJ, relying upon the fact that Five Star was uninsured at
the time of claimant's accident, also penalized Five Star
and held it liable for all awards and assessments made under
the claim (see Workers' Compensation Law
§§ 26-a, 50). A series of WCLJ decisions that made
awards and authorized medical treatment followed. Claimant
and the Uninsured Employers' Fund then negotiated a
settlement agreement pursuant to Workers' Compensation
Law § 32 which, in July 2013, the Workers'
Compensation Board approved. In May 2015, Five Star sought to
reopen the claim to revisit the issues resolved in the prior
WCLJ decisions, as well as the Board decision approving the
settlement agreement. The Board denied the application and
this appeal ensued.
affirm. Regulatory provisions controlling applications for
Board review of WCLJ decisions (see 12 NYCRR 300.13)
"do not restrict the Board's power to reopen a case
in the interest of justice" (Matter of Naylon v Erie
County Highway Dept., 14 A.D.3d 932, 933 ;
see Workers' Compensation Law § 123; 12
NYCRR 300.14 [a] ). Nevertheless, the Board found that
Five Star had failed to submit material evidence that was not
previously available. As such, "the Board acted well
within its discretion in refusing to consider the evidence
and in denying review" (Matter of Druziak v Town of
Amsterdam, Cranesville Fire Dept., 209 A.D.2d 870,
871-872 , lv denied 85 N.Y.2d 809');">85 N.Y.2d 809 ;
see 12 NYCRR 300.14 [a] ; [b]; Matter of
Burris v Olcott, 95 A.D.3d 1522, 1523 ). The
Board's determination is reinforced by its finding that
Five Star's application to reopen, which was not made
until two years after Five Star's president became aware
of the claim, was "untimely" (see 12 NYCRR
300.14 [b]; Matter of Barone v Interstate Maintenance
Corp., 73 A.D.3d 1302, 1303 ). 
Board was also right to decline to revisit its prior approval
of the Workers' Compensation Law § 32 settlement
agreement since, "[a]lthough the Board has continuing
jurisdiction over its cases pursuant to Workers'
Compensation Law § 123, ... 'neither the Board nor
this Court may review a waiver agreement once it has been
approved'" (Matter of Palmer v Special Metals
Corp., 42 A.D.3d 833, 834 , quoting Matter of
Drummond v Desmond, 295 A.D.2d 711, 714 , lv
denied 98 N.Y.2d 615');">98 N.Y.2d 615 ).
Peters, P.J., Garry, Mulvey and Aarons, JJ., concur.
that the decision is affirmed, without costs.
 The Board found that Five Star had
"no valid reason for failing to appear at the hearings
held in this matter" and apparently questioned the
assertion that Five Star was unaware of it, pointing to a
June 2008 hearing (the transcript of which is not included in
the record on appeal) where it was ...